T. S. Eliot included in his great poem, “The Hollow Men,” the memorable line, “This is the way the world ends, Not with a bang but a whimper.” Today, April 4, 2006, the previously momentous case of Luginbyhl v. Commonwealthends in anticlimax with a 9-1 en banc ruling that dodges the key turning point of last year’s panel decision.

The panel had ruled that in a DUI prosecution, a breath test certificate was not testimonial hearsay, so as to invoke the doctrine of Crawford v. Washington, which bars most hearsay exceptions in criminal cases. The full court took up the issue shortly thereafter, and in today’s ruling, the majority finds that the violation of Crawford, which the court assumed but did not decide, was necesarily harmless. There was ample other evidence of Luginbyhl’s drunk driving, including his own direct admission of the facts. When he was asked about his drinking, he admitted to having six to eight vodka drinks; when asked to perform a field sobriety test, he answered, “I’m drunk; I’m an alcoholic.” That, combined with the plentiful probable cause for the stop and the strong odor of alcohol (I’m actually filleting the facts here somewhat; please accept that there was plenty of inculpatory evidence), was more than sufficient to establish Luginbyhl’s guilt without resort to the certificate. (If you’re curious, his BAC was .24%.)

Judge Benton dissents, as he did in the panel decision, arguing that the admission of the certificate was erroneous, and that the error was not harmless.

Because of today’s ruling, a facial challenge to the authentication statute (18.2-268.9) will have to wait for another case in which the physical evidence and the admissions are not quite so damning.